A crucial judicial race

Texans elect the judges on the state’s two courts of last resort: the Supreme Court and the Court of Criminal Appeals. Except for the legal community, voters often don’t know much about the candidates. In a contested race, they tend to vote based on the party, not on the individual. But this election cycle features a race that provides a rare instance in which informed voters may consider crossing party lines. It is the race for presiding judge of the Court of Criminal Appeals between incumbent Sharon Keller (R) and challenger Keith Hampton (D).

Many readers will recall the notorious episode in 2007, when Judge Keller chose not to keep the court open past its normal closing time of 5 p.m. because the defendant’s lawyers could not be ready by that time on a day when their client, Michael Richards, was scheduled to be executed. When the lawyers, Houston-based Texas Defender Service, sought to file a last-minute appeal, a clerk asked Keller whether the court should stay open, to which Keller responded, “We close at five.” Richards was subsequently executed that night. (My colleague Michael Hall wrote extensively about the case in the August 2009 issue.)

In due course, the State Commission on Judicial Conduct charged Keller with violating her duty as a judge by refusing to allow an after-hours appeal for Richards.

Subsequently, a special master reviewed Keller’s actions. Among the findings:

* Judge Keller’s conduct was not exemplary of a public servant.

* She should have been more open and helpful about the way TDS [Texas Defender Service, lawyers for the convicted murderer] could present its claim to the Court of Criminal Appeals.

* She should have directed TDS’s communication to a colleague, Judge Johnson, who was in charge of the case.

* Her judgment in not keeping the clerk’s office open past 5 o’clock was highly questionable.

* In sum, there is a valid reason why so many in the legal community are not proud of Judge Keller’s actions.

The findings amounted to little more than a slap on the wrist. But Keller soon found herself in hot water again. In April 2010, the Texas Ethics Commission fined Keller $100,000, the largest civil penalty ever assessed by the commission, for failing to disclose an interest in eight properties on her financial disclosure form, valued on appraisal district rolls at more than $2.4 million in 2006, and at almost $2.9 million a year later. Judge Keller’s filing included the following statement: “My father, Jack Keller, over a number of years, has acquired and managed, without input from me, all of these properties.”

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During a weekend in San Antonio, I talked to a friend who is a state district judge. He told me that there is a lot of interest in this race in the legal community, from attorneys in both parties who hope Keller can be defeated. But I can’t imagine that the opposition to Keller would rise to a sufficient level for that to happen. The only way for Hampton to be competitive is for there to be a huge number of crossover Republican voters for a Democrat. That hasn’t happened since the Richards-Williams race in 1990, and Keith Hampton is no Ann Richards. As large as the legal community is, it can’t compete with the armies of Republican voters out there. The public’s memory is short. Few will remember an obscure incident from 2007. There is going to be an avalanche of straight-ticket Republican voting on November 6. Keller doesn’t deserve to be reelected, but, barring a miracle, she is likely to be returned to office.

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